C/SCA/960/2014 CAV JUDGMENT DATED: 16/02/2026

Reserved On : 09/02/2026

Pronounced On : 16/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 960 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-

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Approved for Reporting Yes No

✓

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HIRABHAI M MAKWANA

Versus

STATE OF GUJARAT & ORS.

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Appearance:

MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1

MR. SIDDHARTH RAMI, ASST. GOVERNMENT PLEADER for the

Respondent(s) No. 1

HCLS COMMITTEE(4998) for the Respondent(s) No. 3

MS BHAVIKA H KOTECHA(2942) for the Respondent(s) No. 3

NOTICE SERVED BY DS for the Respondent(s) No. 2

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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

CAV JUDGMENT

1.Heard Mr. Dipak R. Dave, learned advocate for the

petitioner as also Mr. Siddharth Rami, learned AGP for

respondent Nos. 1 & 2 and Ms. Bhavika Kotecha, learned

advocate for respondent No.3, at length.

2.The present writ petition is filed by the petitioner, under

Articles 14, 21 and 226 of the Constitution of India, seeking the

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following reliefs:-

“7. (A) This Hon’ble Court may be pleased to issue a writ of

mandamus and / or a writ in the nature of mandamus and/or a

writ in the nature of certiorari and/or a writ in the nature of

certiorari or nay other appropriate writ, order or directions

(i) to quash and set aside the order dated 10.12.2013 passed

by respondent No.2- District Education Officer and further be

pleased to direct respondent No.2 to immediately grant

protection of surplus to the petitioner from the date

respondent No.3 – school came to be closed down, i.e. from

June, 1995, and to grant service benefits including salary and

allowance considering the petitioner as continued in service

as surplus teacher;

(ii) To treat the petitioner as surplus teacher and In-charge

Headmaster and be pleased to issue direction to count service

of the petitioner from June, 1987 until his age of

superannuation as continuous and on the basis of said service,

be pleased to direct respondent no.2-DEO to fix pension of the

petitioner;

(III) Be pleased to direct respondent No.3 to pay all salary and

consequential benefits to the petitioner as per the order

passed by this hon’ble court on 19.10.2000 in Special Civil

Application no.3285 of 1991.

(B) Pending the admission, hearing and final disposal of the

present petition, this Hon’ble Court may be pleased to direct

respondent No.2 – DEO to immediately pass order granting

benefits of surplus teacher to the petitioner on the basis of

order dated 19.10.2000 passed by this Hon’ble Court and

further be pleased to direct respondent No.2 to fix pension of

the petitioner on the said basis;

(C) Any other and further relief or reliefs to which this

Hon’ble Court deemed fit, in the interest of justice; may kindly

be granted;”

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SHORT FACTS

3.The petitioner was appointed as a teacher by respondent

No.3 and given the charge of Headmaster of its Secondary

School in the year of June, 1987. The petitioner was terminated

from service in June, 1990. Therefore, the petitioner approached

the Gujarat Secondary Education Tribunal, Ahmedabad

(hereinafter referred to as ‘the Tribunal’) by filing Application

No.365 of 1990.

3.1After hearing the parties, the Tribunal dismissed the said

application on the ground that the appointment of the petitioner

was not in consonance with Section 35 of the Gujarat Secondary

Education Act, 1972 (hereinafter referred to as ‘the Act,

1972’). Thereafter, the petitioner approached this Court by way

of Special Civil Application No.3285 of 1991, whereby he

challenged the order of his termination as well as the judgment

of the Tribunal. The coordinate Bench of this Court, vide its

judgment and order dated 19.10.2000, partly allowed the said

petition and set aside the order of termination by declaring that

it was passed by respondent No.3 in violation of the principles

of natural justice. It was directed to respondent No.3 to pay the

entire back wages till the school was closed in the year 1995.

No direction was issued to the respondent - State – District

Education Officer to pay any monetary benefit to the petitioner.

3.2Further, it was observed in said judgment that if

respondent No.2 – District Education Officer has considered

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other such teachers as supernumerary teachers, and if such

benefits is given, the said benefit also should be given to the

petitioner.

3.3.Apropos to the aforesaid direction, the petitioner made

representations to respondent No.2 on 16.12.2000 and

05.02.2001, but the same were not paid any heed by the DEO.

Again, he had approached this Court by way of Special Civil

Application No.1577 of 2001, wherein the coordinate Bench of

this Court, vide its order dated 27.06.2001, directed the DEO to

decide representation of the petitioner at the earliest. As the

representation of the petitioner was not decided by the DEO

within reasonable time, the petitioner again had approached

this Court by way of Special Civil Application No. 2933 of 2003.

Again, the coordinate Bench of this Court vide its judgment

dated 12.09.2013, directed the DEO to decide the

representation within three months from the date of receipt of a

copy of that judgment.

3.4Pursuant to the aforesaid direction, respondent No.2 –

DEO appears to have heard the petitioner but rejected the

representation of the petitioner vide its decision dated

10.12.2013, now impugned in this petition. It is specifically

observed by respondent No.2 – DEO that, since the original

appointment of the petitioner as a teacher was not in

consonance with Section 35 of the Act, 1972, thus, illegal, the

petitioner is not entitled to claim any right to be considered as a

supernumerary teacher.

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3.5 It is also not in dispute between the parties that no such

teacher like petitioner appointed by respondent No.3, i.e., not in

consonance with the said provision, has been appointed as

supernumerary teacher by respondent No.1 or 2 as the case

may be.

3.6Feeling aggrieved and dissatisfied with the aforesaid

decision, the petitioner approached this Court by way of this

petition.

SUBMISSION OF PETITIONER

4.Mr. Dave, learned advocate for the petitioner has

assiduously argued as follows: -

4.1The petitioner was appointed as a Teacher in the

Secondary School by respondent No.3 and his illegal

termination was quashed and set aside by this Court vide its

judgment dated 19.10.2000 passed in Special Civil Application

No.3285 of 1991. Once the illegal termination of the petitioner

was quashed and set aside, as a consequence, he was to be

reinstated in service. Since the respondent No.3 – School was

closed down in the year 1995, this Court directed the

respondent No.3 to pay the wages up to that period.

4.2This Court has specifically directed the DEO to consider

the petitioner like other teachers working in respondent No.3-

School, as a supernumerary teacher, thereby, the petitioner was

required to be accommodated in another school.

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4.3For no reason, and despite repeated directions issued by

this Court, finally on 10.12.2013, the impugned decision came to

be passed, thereby the DEO has not decided the claim of the

petitioner to be considered as supernumerary Teacher. While

passing the impugned order, the DEO has committed a serious

error in placing reliance upon the aforesaid decision of the

Tribunal, which was already quashed and set aside by this

Court. Since, the illegal termination of the petitioner is already

quashed and set aside by this Court, and the DEO was directed

to consider him as a supernumerary Teacher like other teachers

of respondent No.3, it ought to have treat him as a

supernumerary Teacher.

4.4Respondent Nos.1 & 2 have failed to consider that once

the order of the Tribunal is quashed and set aside, there was no

reason for them to treat the appointment of the petitioner as

illegal, i.e., not in consonance with the said provision of the Act,

1972. Respondent Nos.1 & 2 have not taken into account the

previous order passed by the predecessor of respondent No.1,

thereby committed serious error in law. The respondent No.1

has approved such type of other appointment like of petitioner

vide its order 02.05.1989, in a matter of appointment of teacher

in Sarasvati Uttar Buniyadi Vidhyalaya, Faijrabad, Taluka –

Matar, District – Kheda.

4.5This Court, while admitting the matter on 21.09.2015, has

recorded the submissions of both sides and specifically observed

that the DEO has been directed to consider the case of the

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petitioner, if other teachers are considered as supernumerary

teachers and given any benefits, then he should be given. This

Court has also not entertained the application of the respondent

No. 1 & 2 being Civil Application (for modification) No.1 of 2024

filed in the present petition vide its order dated 23.08.2024,

thereby, not disturbed its order dated 23.04.2024, whereby the

DEO was directed to prepare pension papers of the petitioner.

When such would be the position, this Court should exercise its

discretionary powers in favour of the petitioner by directing

respondent Nos.1 and 2 to fix the pension of the petitioner and

release retiral benefits in his favour.

4.6Lastly, Mr. Dave, learned advocate for the petitioner,

under instruction of his client, would state that if the

respondent No.1 & 2 are ready to make payment of pension,

then the petitioner will not claim any back wages from 1995 till

he attained the age of superannuation.

4.7Mr. Dave, learned advocate for the petitioner would

request this Court to allow the present petition.

SUBMISSION OF RESPONDENTS

5.Per contra, Mr. Siddharth Rami, learned AGP has strongly

opposed this petition by making the following submissions: -

5.1It is undisputed that the appointment of the petitioner as a

Teacher was in violation of Section 35 of the Act, 1972, and

therefore, the petitioner is not entitled to claim any relief, as

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prayed for in this petition.

5.2It is the settled position of law that any appointment of a

Teacher by a private School without following due procedure of

law, it is treated as null and void and as such, illegal. Since the

appointment of the petitioner is void ab initio, the petitioner is

not entitled to claim any benefits, including pension.

5.3The entire basis of the petition to make the claim of retiral

benefits including pension is based upon the direction issued by

this Court vide its judgment dated 19.10.2000 passed in Special

Civil Application No.3285 of 1991. This Court has never directed

the DEO to grant supernumerary teacher benefits to the

petitioner as claimed. This Court in its said decision, never held

that the appointment of the petitioner was in accordance with

law, but set aside his termination on the ground that it was in

violation of the principles of natural justice. Rather, the

argument of the petitioner also recorded in the said decision

and as per the opinion of this Court, it is so held that so far as

payment of salary to such teacher (petitioner) is concerned, the

Government may refuse to pay the salary of such teacher, as his

appointment is not valid appointment. Thus, liability of salary

was only fashioned upon the shoulders of respondent No.3

(school).

5.4The petitioner was appointed in the year 1987 and

terminated in the year 1990. Thus, he worked only for three

years and as such, respondent No.3- School was closed in the

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year 1995. In that factual scenario also, the petitioner not even

completed the qualifying service to receive pension. The

petitioner is seeking all monetary benefits including pension,

without having worked for more than three years. This Court, at

no point of time, has directed respondent Nos.1 and 2 to make

payment of pension but the direction was only to prepare the

service book / pension papers. So, in the absence of any

adjudication of entitlement of the petitioner to receive pension,

the petitioner is wrongly placing reliance upon the orders dated

23.04.2024 and / or 23.08.2024 passed in this matter and the

said application, respectively.

5.5The DEO has after hearing the petitioner and taking note

of the undisputed fact that the appointment of the petitioner

was not in accordance with law, rejected the representation of

the petitioner. Though, the order of the Tribunal is referred to

by the DEO in its impugned decision, the fact remains that the

appointment of the petitioner was an illegal one. The petitioner

has also misconstrued the order dated 02.05.1989 passed by

respondent No.1 in the matter of Sarasvati Vidhyalaya,

inasmuch as, the NOC was issued by DEO for only peon but

school management had appointed 2 Teachers - one full time

and another part-time, and upon the request of the concerned

school management, one appointment given to a teacher was

approved by Commissioner, Higher Education and another

appointment was ordered to be accepted subject to the outcome

of the proceedings instituted before the Tribunal by the

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concerned teacher. Whereas, at no point of time either

respondent No.3 – School or the petitioner prior to his

termination, requested the concerned authority to give his nod

to the appointment of the petitioner. It is settled law that

equality cannot be claimed on the basis of an illegal order.

5.6To buttress his arguments, he has relied upon the

following judgments: -

i.Government of Andhra Pradesh & Ors. Vs.

K. Brahmanandam & Ors. reported in (2008) 5

SCC 241;

ii.State of U.P. And Ors vs Ram Sukhi Devi

reported in (2005) 9 SCC 733; and

iii.State Of Odisha & Ors. vs Sulekh Chandra

Pradhan & Ors. reported in (2022) 7 SCC 482

5.7Mr. Siddharth Rami, learned AGP, would request this

Court to reject the present petition.

6.No other and further submissions are made by the learned

advocates appearing for the respective parties.

ANALYSIS AND DISCUSSION

7.Having heard the learned advocates for the respective

parties and upon perusal of the pleadings and documents

submitted by the respective parties, the issue germane in the

present case revolves around the direction issued by the

coordinate Bench of this Court vide its judgement dated

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19.10.2000 passed in SCA No.3285 of 1991, whereby the

petitioner is claiming that DEO has to consider him as

supernumerary teacher and that the benefits given to other

teachers of respondent No.3- School should be granted to him.

8.I have minutely gone through the observations and

directions which were issued by this Court in the said

judgement, and for better understanding, I would like to

reproduce the same as follows:-

“7. The question which arises for the determination of

the Court is whether the appointment is ineffective or

void appointment or whether in case of ineffective

appointment procedure as provided u/s 36 is required to

be followed or not. It is not in dispute that the concerned

teacher was appointed by the school though the

representative of the DEO was not present and therefore

it cannot be said that the provisions of Section 35 of the

Act were followed by the school. Nonetheless, so far as

salary of the teacher is concerned, the same is required

to be borne by the Government under the provisions of

Grant in Aid Code and therefore as far as the State

Government is concerned, when the question of payment

of salary of such teacher arises the Government may

refuse to pay the salary of such teacher as his

appointment is not valid

appointment………...XXXXXX….XXXXXXXX…………….

13. The respondent-management is directed to pay all

the aforesaid benefits to the petitioner up to the date of

closure of the institution and whatever benefit is given to

other teachers who were continuing in the school up to

the closure of the institution should also be given to the

petitioner. If the D.E.O. has considered other such

teachers as supernumerary teachers and if such benefit

is given, the said benefit also should be given to the

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petitioner. The respondent-management is also directed

to pay arrears of salary of the concerned teacher

forthwith for the period for which he has served in the

institution and for which no salary was given to him.

Rule is accordingly made absolute to the aforesaid extent

with no order as to costs.”

(emphasis Supplied)

9.Thus, as per the said decision, this Court has categorically

held that the appointment of the petitioner by the School is not

as per the provisions of Section 35 of the Act, 1972. There is no

dispute between the parties that the appointment of the

petitioner is not as per the said provisions. Sub clause (7) of

Section 35 of the Act, 1972 clearly states that any appointment

of a teacher made in contravention of the provisions of this

Section shall be ineffective. It is trite that any appointment of a

teacher made in contravention of the said provisions is void ab

initio and, in such circumstances, it cannot be regularized.

10.It is the core submission of Mr. Dave, learned advocate for

the petitioner that as per the said decision, DEO ought to have

considered the case of the petitioner like other teachers who

were treated as supernumerary teachers due to closure of the

school. Mr. Dave, learned advocate for the petitioner, is not

correct in his submission that any such direction was ever

issued by this Court in the said judgement. There is a visible

distinction made by this Court when it used “other teachers”

and “such teachers” in para-13 of the said decision. In fact,

this Court has specifically directed only the school management

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to pay all the benefits to the petitioner as paid to other teachers,

till the date of closure of the school. Whereas, while directing

DEO to consider the benefits of a supernumerary teacher, it

only observed that it should be given to the petitioner, if other

such teachers are given such benefits. There is nothing on

record to show that any other such teachers like petitioner who

were appointed by school management in contravention of

Section 35 of the Act, 1972 were considered as supernumerary

teachers. The other teachers who were regularly selected by

school management unlike the petitioner, might have been

considered as supernumerary teachers but since the

appointment of the petitioner held to be in violation of statutory

provisions of said law, no equality can be claimed by the

petitioner with other teachers. It would be apt to observe here

that vide its said judgement; this Court never directed the

respondent – State to pay any salary to the petitioner for

intervening period. This itself suggests that this Court has not

approved the initial appointment of the petitioner; rather held

that the appointment of the petitioner is not valid.

11. At this stage, it is apposite to refer the decision of the

Hon’ble Apex Court in the case of K. Brahmanandam & Ors.

(supra), wherein observed and held thus:

“6. It is stated that the management of the institution,

before the recruitment of the respondents, neither

obtained any prior permission from the District

Education Officer nor made advertisement in two

newspapers nor notified the vacancies to the

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employment exchange. Even no order of approval as

regards the said appointments was obtained from the

District Education Officer.

14. The liability of the State to pay salary to a teacher

appointed in the recognised schools would arise provided

the provisions of the statutory rules are complied with,

subject to just exception. The right to claim salary must

arise under a contract or under a statute. If such a right

arises under a contract between the appointee and the

institution, only the latter would be liable therefor. Its

right in certain situation to claim reimbursement of such

salary from the State would only arise in terms of the law

as was prevailing at the relevant time. If the State in

terms of the statute is not liable to pay the salary to

the teachers, no legal right accrues in favour of

those who had been appointed in violation of

mandatory provisions of the statute or statutory

rules.

15. The equality clause contained in Articles 14 and 16 of

the Constitution of India, it is trite, must be scrupulously

followed. The court ordinarily would not issue a writ of

or in the nature of mandamus for regularisation of the

service of the employee which would be violative of the

constitutional scheme.

16. Appointments made in violation of the

mandatory provisions of a statute would be illegal

and, thus, void. Illegality cannot be ratified. Illegality

cannot be regularised, only an irregularity can be.”

(Emphasis Supplied)

11.1Likewise, in the case of Sulekh Chandra Pradhan &

Ors. (supra), in somewhat similar factual situation, it held

thus:-

“34. It is not in dispute that the appointment of all

the applicants/respondents/teachers have been

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made directly by the respective Management

without following the procedure as prescribed

under the Rules/statute. It is a trite law that the

appointments made in contravention of the

statutory provisions are void ab initio. Reference in

this respect could be made to the judgments of this

Court in Ayurvidya Prasarak Mandal v. Geeta

Bhaskar Pendse [Ayurvidya Prasarak Mandal v.

Geeta Bhaskar Pendse, (1991) 3 SCC 246 : 1991 SCC

(L&S) 900] , J&K Public Service Commission v.

Narinder Mohan [J&K Public Service Commission v.

Narinder Mohan, (1994) 2 SCC 630 : 1994 SCC (L&S)

723] , Official Liquidator v. Dayanand [Official

Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1

SCC (L&S) 943] and Union of India v. Raghuwar Pal

Singh [Union of India v. Raghuwar Pal Singh, (2018)

15 SCC 463 : (2018) 2 SCC (L&S) 823]

35. We are unable to accept the contention raised by

Shri Gaurav Agrawal and Shri R. Balasubramanian that

since the applicants/teachers were appointed on posts

which were not on grant-in-aid basis, the said Rules are

not applicable. The said Rules would clearly show that

they are applicable to aided educational institution.

Undisputedly, the institutions in which the

applicants/teachers were appointed, were recognised as

aided M.E. Schools vide G.O. dated 12-9-1980. It is also

not in dispute that the appointments so made were

subsequent to the schools being recognised as aided

schools. As such, the contention in that regard deserves

to be rejected.”

(Emphasis Supplied)

12.Thus, in view of the aforesaid facts and position of law as

it stands as on date, it cannot be gainsaid that the appointment

of the petitioner is in consonance with the provisions of the law.

If that be so, as a matter of course and right, the petitioner

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cannot be permitted to claim that he should have been

considered as a supernumerary teacher. Accordingly, I do not

find any error in the impugned order dated 10.12.2013 passed

by the DEO, Nadiad, District – Kheda, while rejecting the claim

of the petitioner to grant him the benefits as granted to other

regularly selected teachers of respondent No.3 – School.

13.Furthermore, Mr. Rami, learned AGP would also correct in

his submission that the petitioner had hardly worked for three

years from the date of his appointment and even if his period of

absence from duty due to termination would not be considered

(between 1990 and 1995), still his tenure as teacher would be

from 1987 to 1995; then also, he has not completed qualifying

pensionable service.

14.Apart from this, Mr. Dave, learned advocate for the

petitioner has emphasized on the order dated 02.05.1989

passed by Dy. Secretary, Education Department of respondent –

State, whereby it has not disturbed the approval granted by the

Commissioner of higher Education in connection with the

appointment of teacher by concerned school, wherein also, no

prior NOC was obtained from DEO at the time of appointing the

concerned teacher. A close look of the said order would indicate

that such appointment of the teacher concerned was accepted

by Commissioner, Higher Education on the request made by the

concerned School management and in those circumstances, the

said authority (State) has not disturbed the order of the

Commissioner, Higher Education.

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14.1So far as, in the present case, no such steps were taken by

the school management before terminating the service of the

petitioner. It is settled law that there is no concept of negative

equality; thus, an illegal order cannot be a ground for claiming

parity. It cannot be pressed into service for perpetuating any

illegality. Accordingly, the aforesaid decision of the State does

not come to the rescue of the petitioner.

15.It was also emphasized, during the course of argument by

Mr. Dave, learned advocate for the petitioner that this Court,

vide its order dated 23.04.2024, has directed the respondent to

prepare pension paper of the petitioner and thereafter consider

the case of the petitioner to pay all his consequential retiral

dues; thereby, he would submit that the respondent cannot be

absolved from its liability to pay pension and other benefits. Per

contra, Mr. Rami, learned AGP has placed reliance upon the

stance taken by respondent No.2- DEO in its affidavit dated

06.02.2026 filed in this matter and would submit that at no

point of time, this Court has either directed payment of retiral

dues to the petitioner or held that the petitioner is entitled to

receive such benefits.

16.Having analyzed the said submissions and after going

through the said orders dated 23.4.2024 and 23.08.2024 passed

by this Court in this matter, in none of the orders, this Court at

any time, either intended to direct respondent to pay retiral

dues to the petitioner or held that the petitioner is entitled to

receive the pensionary benefits; rather it has only directed the

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respondent to prepare the pension papers and thereafter,

considered the case of the petitioner to pay all his consequential

retiral dues. It is true that as per the said directions, the

respondent has prepared petitioner’s pension papers and

service book. However, upon noticing that the petitioner’s initial

appointment was illegal and void, it has declined to grant any

retiral benefits to the petitioner. In such circumstances, and in

view of the aforesaid, no fault can be found with respondent

when it has not released the retiral dues of the petitioner in his

favour.

CONCLUSION

17.In view of the foregoing observations, discussion and

reasons, I am of the view that, since the appointment of the

petitioner was in contravention of the provisions of Section 35 of

the Act, 1972, thus, it is held to be illegal and void ab initio, the

petitioner is correctly not considered as a supernumerary

teacher by respondent No.2 – DEO. Consequently, the petitioner

is not entitled to receive any retiral benefits, including pension

as claimed.

18.In view of the foregoing conclusion, the present writ

petition, being sans merit, is liable to be dismissed; it is

accordingly dismissed. Rule is discharged. No order as to costs.

(MAULIK J.SHELAT,J)

Lalji Desai

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